1714509 (Refugee)

1714509 (Refugee) [2021] AATA 659 (5 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714509
COUNTRY OF REFERENCE:                   Iran
MEMBER:Simone Burford
DATE:5 February 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 05 February 2021 at 3:27pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Baha’i – credibility assessment – country information – official and societal discrimination – restrictions on access to medical services – personal vulnerabilities – age and fragility – significant chronic health issues – lack of family support – inability to subsist – ‘systematic conduct’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
Appellant S395/2002 v MIMA (2003) 216 CLR 473
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Ram v MIEA (1995) 57 FCR 565
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089
WAKZ v MIMIA [2005] FCA 1065
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a [age]-year-old Iranian woman[1]. She claims to be a member of the Bahai faith. Before coming to Australia, she had been living with her (second) husband of 30 years in Mashhad, Iran. Her husband, who was also a Baha’i, died in Iran in November 2012.
[1] The Tribunal notes the applicant claims to be have been born in [Year 1] rather than [Year 2]. The Tribunal has used the birthdate appearing on her identity documentation, however the Tribunal accepts based on her presentation at the hearings and her personal history, including having a child who was born in [year], that she is likely to be older than [age] years of age and was likely born in [Year 1] as claimed. However, the Tribunal does not regard the discrepancy to be relevant for the purposes of this application.
The applicant arrived in Australia on [a] Visitor visa [in] September 2016. She had previously visited Australia in March 2007, returning to Iran [in] June 2007.
The applicant travelled to Australia on an Iranian passport and claims to be an Iranian national. Copies of her Iranian passport, issued [in] 2015, and other identity documents were provided to the Department. The delegate accepted the applicant’s identity and there is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. On this basis, and given the delegate had no concerns about her claimed nationality, the Tribunal finds that the applicant is a citizen of Iran, which is also her receiving country for the purposes of the refugee and complementary protection assessments.
The applicant has a sister and brother living in Australia and splits her time living with both siblings who provide her with support and care. Her sister is separated and has [number of] children. She had another brother who was living in Australia but is now deceased. She has another sister in [Country 1]. At the first hearing the applicant told the Tribunal she has no family remaining in Iran.
She has one daughter who is in her [age range] and living in [Country 2], in [location], where she moved following the Iranian Revolution. She told the Tribunal she does not have a good relationship with her daughter who was upset when she remarried. They have limited contact and last spoke several months prior to the first hearing. She has one step-son who is in his mid-[age range] and who lived in Mashhad. She has ‘had nothing to do with him’ for 5 years.
In Iran her husband had worked for the [government] but retired prior to the Revolution. He was on a government pension which she continued to receive after his death. She had worked in an office [for an employer] before being dismissed in 1983 after the Revolution. She has not been employed since that time.
The applicant applied for a protection visa on 22 November 2016.
Protection claims
Protection visa application
In her application for a protection visa, the applicant stated that she fears she will be persecuted on return to Iran as member of the Baha’i faith. She claims she left Iran to ‘escape from Tyranny and oppression of the Iranian Government recent increase in hardship towards Bahai’s’. She claims that the government did not feel responsible for Bahai’s and ‘Elderly Bahai’s are targeted by both the Government and the criminals who find them easy targets’.
She claims to have been forced from her employment in 1983 due to her faith and to have suffered discrimination, denial of religious freedom and persecution including desecration of the graves of dead Bahai’s. She claims to fear persecution as a Baha’i in all parts of Iran.
She claims that:
Under the Iranian Constitution, Baha'is are not a recognised minority. This has led to destruction of all Baha'i buildings and confiscation of properties and execution of some Baha'is . The main reason for persecution of Baha'is is religious fanatics who are in key positions in Iran.
She claimed that the Iranian authorities had passed legislation to destroy Baha’is and to stop them being equal citizens.
Submissions to the Department
The applicant submitted the following documents to the Department of Home Affairs (the Department):
·Identity documentation;
·Death certificate (copy and translation) for the applicant’s husband, [Mr A], recording his death [in] November 2012 in Mashhad, Iran;
·A letter (copy and translation) dated [in] October 1983 on letterhead from [Employer 1] addressed to the applicant confirming her Permanent Dismissal from Government Employment as an [Occupation 1] at [work location];
·‘Accused notice’ (copy and translation) ‘Judgement of the Council’ dated [in] August 1983, noting the investigating authority ‘Human resources re-organisation primary council’ recording judgment against the applicant for an allegation of ‘Corrupted Sect’. The judgment noted the applicant’s conviction for ‘membership in the Corrupted Sect, which is the collective opinion of Muslims is recognised as being outside the religion of Islam’. The document records the applicant’s conviction as ‘Permanent Dismissal from Government Employment’.
The applicant also submitted a notification of incorrect answers, amending her address and employment history.
The interview
The applicant attended an interview with the Department on 7 June 2017. \
The delegate notes the applicant displayed a good knowledge of Baha’is customs, including general understanding of its principles and teachings at interview. She was also able to describe the experience of being a Baha’i in Iran as one of discrimination and exclusion. She said she was prohibited from working in government as a Baha’i, and consequently lost her government job as a [Occupation 1] when it was discovered she was of Baha’i faith. She described being told that she is “Kafirs” which means people who are against god, and their belongings can be taken away by force. When asked about where she prays in Iran, she indicated that Baha’is practiced in their private homes.
Following the interview, the applicant submitted the following documents to the Department:
·A further notification of incorrect answers correcting her address and education and employment details and a statutory declaration noting her birthdate on her birth certificate was incorrect (and she was born in [Year 1] and not [Year 2] as indicated on her birth certificate).[2]
The delegate’s decision
[2] The Tribunal notes the decision record uses the [Year 2] date for the applicant’s birth.
On 28 June 2017, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision with her application for review.
The delegate accepted that the applicant was a member of the Baha’i faith. The delegate noted that the applicant displayed a good knowledge of Baha’i customs, including a general understanding of its principles and teachings and was able to describe the experience of being a Baha’i in Iran as one of discrimination and exclusion. However, the delegate was not satisfied that the applicant had a well-founded fear of persecution on return to Iran on this basis.
The delegate found, based on the 2016 Country Information Report[3] prepared by the Department of Foreign Affairs and Trade (DFAT), that Baha’is faced a high level of discrimination in Iran but societal discrimination and violence against Bahia’s is generally low. The delegate found that the applicant had been able to live in Iran without suffering harm other than the loss of employment, and had obtained a passport and received her husband’s pension. The delegate considered she had support from her stepson and had been caring for herself in the years following her husband’s death. The delegate found there was no information the applicant would not continue to receive professional help and medication in Iran. Further, the delegate found that the applicant’s return to Iran after her visit in 2007 indicated she did not have a strong fear of personal harm on return to Iran and that the fact she did not suffer harm after returning to Iran in 2007 indicated she would not face a real chance of persecution in the reasonably foreseeable future. Based on these findings, the delegate also found the applicant did not face a real risk of serious or significant harm.
[3] Department of Foreign Affairs and Trade, Iran: Country Information Report, 21 April 2016.
Review application
On 6 July 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant attended hearings before the Tribunal on 18 December 2020 and 13 January 2021 to give evidence and make submissions in support of the review application. Her sister also attended as a support person. The applicant was represented in relation to the application for the visa and the review by her registered migration agent. Her representative attended the hearings, which were conducted with the assistance of interpreters fluent in the English and Farsi languages.
Prior to the first hearing the applicant submitted the following material to the Tribunal (in addition to copies of the material submitted to the Department prior to the delegate’s decision):
·Letter dated 1 October 2017 from [Mr B], [office bearer], Local Spiritual Assembly of the Baha’is of [Suburb 1] confirming the applicant is a member of the Australian Baha’i community;
·‘In the middle of a pandemic, Iran dials up persecution of its Baha’i citizens’, The Wire, 12 October 2020;
·Handwritten note from [the] Health Services, dated 28 November 2014[4] confirming that ‘[Mr C]’ (the applicant’s brother) was being treated for a nervous condition and is seeking support for his sister to come and visit him. The Tribunal notes the applicant did not refer to this information at the hearing or make any claims with respect to it;
·Written submissions from the applicant’s registered migration agent dated 11 December 2020.
[4] The date was unclear on the copy submitted to the Tribunal.
In submissions to the Tribunal, the applicant claims that the Baha’i are ‘condemned by the Iranian Government and majority of its Muslim populace.’ Her fear of harm is ‘compounded’ due to her old age and ‘current medical condition’.
She claims to have been forced from her employment in 1983 due to her faith and to have suffered discrimination, denial of religious freedom and denial of basic services including adequate health treatment due to her Baha’i faith. She claims that a cousin, [Mr D], who was a Baha’i, was killed in 2017 due to his Baha’i faith.
The applicant claims that Baha’i people in Iran suffer a range of ill-treatment, including:
·     expulsion from schools and denial of employment and positions of influence;
·     dismissal from their jobs;
·     their pensions terminated;
·     barred from employment in the public sector;
·     private companies have been pressured to dismiss Baha’i employees;
·     banks have blocked the accounts of Baha’i clients;
·     some Baha’i businesses have been shut down;
·     unable to legally reproduce or distribute religious literature;
·     known Baha’i religious sites and cemeteries are regularly desecrated or destroyed;
·     Baha’i families are excluded from official recognition of family law matters, including marriages, divorces and custody arrangements.
The applicant claimed there is a risk she will suffer similar treatment if returned to Iran. She claimed she will be subjected to arbitrary arrest, detention, torture and the death penalty on return to Iran. She claimed she lacks family support and will not survive given the level of persecution suffered by the Baha’i community in Iran and the current state of her health.
At the first hearing the Tribunal outlined for the applicant the issues it was considering on the application, confirmed that she did not have any changes to make to her claims for protection and discussed her background and changes to her personal circumstances since the application was filed.
The Tribunal notes that at the first hearing the applicant was visibly frail and had difficulty walking, requiring the assistance of a walking frame. The Tribunal raised a concern with the applicant’s representative that there was a lack of medical evidence regarding the applicant’s medical conditions (which were mentioned in submissions). The Tribunal also suggested to the representative that it may assist in limiting the amount of time the applicant was required to give oral evidence if the applicant prepared a written statement containing her evidence and claims. The hearing was adjourned to allow further evidence to be provided. The applicant’s representative requested the next hearing be listed prior to 14 January 2021 as he was scheduled to leave the country on that day.
Additional material was submitted on 3 January 2021 following the first hearing, including:
·A one-page statement from the applicant dated 24 December 2020;
·An aged care assessment of the applicant generated in March 2020 by the Aged Care Assessment Team, Department of Aged Care and Rehabilitation, noting the applicant is ‘living with extreme frailty and poor mobility’ and recommending her for permanent care;
·Hansard records from a Commonwealth House of Representatives, Private Members Business debate on the Baha’i faith on 16 September 2019;
·‘Elderly Baha’i Man Brutally Murdered Amid Islamic Republic’s “Systematic Hatred” of Baha’is’, Center for Human Rights in Iran, 3 November 2016, (iranhumanrights.org);
·‘[Article reporting on the murder of a Baha’i]’, [Media outlet], [in] January 2017 - the applicant claimed the victim of the attack was her cousin;
·DFAT Country Information Report: Iran, 14 April 2020 (the 2020 DFAT Country Information Report);
·Further written submissions.
The applicant’s claims for protection and the evidence on which she was seeking to rely were discussed at the second hearing. This information and the applicant’s oral evidence to the Tribunal at both hearings are discussed further below.
ISSUES
The issue in the review is whether the applicant has a well-founded fear of persecution in Iran due to her Bahai faith or for any other reason, or whether complementary protection provisions otherwise apply.
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.
DECISION MAKING FRAMEWORK
Criteria for a protection visa
As noted above, the criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Credibility assessments

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5]
[5] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[6] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[7]
[6] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[10] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[11]
[10] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[11] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[12]
[12] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report on Iran which is the most recent DFAT report prepared for this purpose.
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The applicant’s credibility
The Tribunal notes that there were elements of the applicant’s evidence which have changed over time, including with respect to her experiences in Iran. At times her evidence was also vague and contradictory. The Tribunal formed the view that these issues were primarily to do with the applicant’s age and her anxiety regarding her possible return to Iran. The Tribunal formed the view that she occasionally downplayed some aspects of her life, including the extent of her contact with other family members and potential supports in Iran. For example, she said she had no family members remaining in Iran but later said she had found out about the death of her cousin though extended family there. She also said she had no supports in Iran, however later said she had been cared for by members of the Baha’i community following her fall in Iran. However, the Tribunal assessed these inconsistencies or overstatements were largely due to the applicant’s desire to impress upon the Tribunal the difficulties she would face on return to Iran and her imperfect recollection of events.
The Tribunal also discussed with the applicant the fact that she had come to Australia once before and returned to Iran and then had waited several years after her husband died in 2012 before coming to Australia and seeking protection. She said that when she came the first time she had a duty to return to her husband. She said when he was living she was relatively safe. She said she wanted to mourn him properly after his death but after her fall her situation there deteriorated and she could not care for herself and became afraid she would be harmed.
On balanceand having regard to the applicant’s personal frailties and circumstances, the Tribunal accepted her evidence and found her account of her experiences in Iran and her fears of return to be genuine and to be recounted to the best of her recollection and capacity.
Applicant’s Baha’i faith
The Tribunal accepts the applicant is a member of the Baha’i faith. This claim was accepted by the delegate on the basis of the applicant’s evidence at her interview. The Tribunal places weight on that finding. The Tribunal discussed the applicant’s practice of her faith in Australia and Iran with her at the second hearing. The Tribunal found her knowledge of the Baha’i faith and her account of her practice consistent with country information regarding the practice of Bahai’s generally and in particular in Iran. The Tribunal also notes the applicant provided documentation from the Local Spiritual Assembly of the Baha’is of [Suburb 1] confirming the applicant is a member of the Australian Baha’i community. While that letter was very brief, in the context of the applicant’s evidence and the findings of the delegate, the Tribunal accepts it as evidence of her ongoing membership of the Baha’i community in Australia.
Based on the evidence and country information before it, the Tribunal finds the applicant is a member of the Baha’i faith and has been so since her youth in Iran. The Tribunal finds she would continue to identify as and practice the Bahai faith in Iran and would be a member of the Baha’i community there. The Tribunal finds the applicant has been identified as a member of the Baha’i faith in Iran previously and that she would be identified as a member of the Bahai faith in Iran if she were to return there.
Health issues
The applicant claimed to be suffering from medical issues associated with advancing age and stemming from a fall she suffered in Iran. The applicant gave evidence that she initially had a fall several years prior to leaving Iran, when her husband was still living. She said she was injured when her bag was stolen. Later, when she was living by herself she had another fall when climbing to reach something in a cupboard. She said she was knocked unconscious and it was evening before she regained consciousness and was found. She said she required surgery as a result of the fall and was unable to walk properly or care for herself once she was discharged from the hospital, which she claimed occurred before she was recovered due to a nurse finding out she was Baha’i. She said this happened because she had visitors who were Baha’i and they wore different outfits than Muslim women in Iran. She said she was cared for in her home by members of the Baha’i community following her discharge.
In support of the claims to suffer ongoing health issues she offered a letter from her doctor and a copy of an assessment by an Aged Care Assessment Team from the Department of Aged Care and Rehabilitation in March 2020. The background in the assessment is consistent with the applicant’s claim to have suffered a fall around 5-6 years ago, prior to leaving Iran, and to have suffered ongoing health and mobility problems as a result. The assessment found the applicant required a high level of daily care to support her remaining in her home. She requires assistance with walking, showering and preparation of meals. Currently this care is provided by her brother and sister supported by medical professionals. While the evidence was not in the form of expert testimony to the Tribunal, the Tribunal accepts the report is genuine and that the terms of the report support the applicant’s claims with respect to her medical needs now and in the reasonably foreseeable future. The report also accords with the Tribunal’s observations of the applicant at the hearings.
Based on the evidence the Tribunal finds the applicant has significant chronic health issues which require ongoing medical care and render her unable to manage her own daily care without fulltime support in the home, and that she is in need of permanent care.
Harm as a Baha’i in Iran
The applicant claimed to fear harm on return to Iran in part based on her prior experiences there. She claimed that she had been discharged from her job as an [Occupation 1] in 1983 due to her Baha’i faith. It is not clear that this stopped her working altogether as her application (and subsequent amending forms) indicate that she worked from 1983-1986 in [Occupation 2] at another [workplace]. However, the Tribunal accepts she was discharged from her [Occupation 1] role due to her Baha’i faith and that she was unable to return to that government employment as a result.
The applicant also claimed to fear the loss of her husband’s pension as a result of being a Baha’i. She told the Tribunal she was still receiving the pension but it was not much and she donated it to charity. The Tribunal queried how her husband had been able to obtain a pension as a Baha’i and she said that he had been an employee before the Revolution and the records had been lost, and the recreated records did not mention his Baha’i faith, allowing him to continue receiving the pension. She claimed she was fearful that if she returned to Iran she would be reliant on the pension and it may be withdrawn. The Tribunal considers that as the applicant has received the pension for a period and has significant family support outside Iran it is unlikely she would be financially dependent on the pension in Iran, however the Tribunal accepts on the basis of country information[13] that there is a risk she would lose her pension if her husband’s Baha’i faith became known to the relevant authorities and that this wold impact on her financial position in Iran.
[13] For example, US Department of State, 2019 Report of Religious Freedom in Iran, Iran - United States Department of State.
The applicant provided media reports of attacks on Bahai’s in Iran including on the elderly. At the second hearing she told the Tribunal she had a cousin who was killed in 2017 in Iran. When the Tribunal asked whether that meant she had extended family in Iran she said she had distant extended family there. It was not clear if she was in regular contact with them though the Tribunal inferred from her knowledge of her cousin’s death that extended family members remain in some form of contact.
She claimed one of the media reports related to the murder of her cousin in 2017. While there was no evidence to corroborate the applicant’s claim to be related to the victim in this report, based on the applicant’s background and testimony and giving her the benefit of the doubt, the Tribunal accepts her cousin, who was a Baha’i, was murdered in Iran. While the report does not confirm the attack was directed at the victim because of his Baha’i faith the Tribunal accepts based on the country information that he may have been targeted due to his faith.
The applicant gave evidence of persistent discrimination and persecution as a Baha’i while living in Iraq. She spoke of the inability of her community to practice their faith institutionally, the desecration of the dead and arrest of community members in Mashhad. The Tribunal accepts that the applicant was describing events she had experienced at a persistent level across the course of her life in Iran.
As noted above, she claimed she was denied compensation following what appeared to be a ‘bag snatch’ attack. This is consistent with country advice.[14] She described having been denied ongoing treatment for her injury following her fall and her reliance on the Baha’i community during her recovery. The Tribunal accepts she was recounting events which happened to her to the best of her ability and recollection.
[14] For example, US Department of State, 2019 Report of Religious Freedom in Iran, Iran - United States Department of State.
However, the Tribunal found some of the harm the applicant claimed she feared she would suffer on return to Iran was not well-founded. In particular, the applicant claimed she would be arrested at the airport for being a Baha’i and would be imprisoned and executed. The applicant did not offer any country information in support of this claim but said one of the Bahai’s from her community had been arrested re-entering Iran. The Tribunal found this claim not to be supported on the country information and not consistent with the applicant’s own experience of having returned to Iran previously without incident. She said that on that occasion her husband met her so she was able to return safely however, in the Tribunal’s view, that does not explain why, if she were known to authorities to be Baha’i, they would not have arrested her at the airport on that occasion. Given the lack of any information to support a claim that a Baha’i returnee to Iran would be subject to arrest on re-entry (for no reason other than their faith), the Tribunal does not accept this fear is well-founded.
Country information relevant to these claims is detailed further below.
Country information
The Tribunal discussed with the applicant country information regarding the treatment of members of the Baha’i faith in Ian, including information contained in the most recent country information report issued by the Department of Foreign Affairs and Trade in April 2020 (the 2020 DFAT Country Information Report).[15]
[15] DFAT Country Information Report – Iran, 14 April 2020.
The 2020 DFAT Country Information Report on Iran indicates that the official religion of Iran is Shi’a Islam and that over 99 per cent of Iranians are Muslim. Article 4 of the Iranian Constitution requires ‘all of the country’s laws and regulations be based on (Shi’a) Islamic criteria’. Government policy and legislation heavily favours the majority Shi’a population in practice, leading to pervasive structural discrimination against non-Shi’a.[16] DFAT reports that there are non-Muslim recognised religions in Iran, including certain Christian religions, however proselytisation by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims.
[16] DFAT Country Information Report – Iran, 14 April 2020 at 3.27–3.28.
With respect to members of the Baha’i faith in Iran, the 2020 DFAT Country Information Report notes:[17]
The Baha’i faith has its roots in 19th century Persia, and promotes a belief in the unity of God, religion and humanity. Its founder, a nobleman called Baha’u’llah, is considered a prophet by Baha’is. The religion has its current headquarters in Haifa, Israel. Estimates of the number of Baha’is in Iran range from 300,000 to 350,000. Baha’i is not a recognised religion in Iran and its adherents are considered infidels. As such, most Baha’is conceal their faith. It is common for the authorities to condemn the Baha’i, including in official statements. In 2013, Supreme Leader Khamenei issued a fatwa (religious instruction) encouraging Iranians to avoid all dealings with Baha’is.
In 1991, the Supreme Council of the Cultural Revolution issued a determination on ‘the Baha’i question’. This concluded that Baha’i teachings contradicted the tenets of Islam and instructed that its adherents be expelled from schools and denied employment and positions of influence. Thousands of Baha’is have since been dismissed from their jobs and their pensions terminated, and Baha’is have been barred from employment in the public sector; private companies have been pressured to dismiss Baha’i employees; banks have blocked the accounts of Baha’i clients; and some Baha’i businesses have been shut down. As adherents of an unrecognised religion, Baha’is are unable to legally reproduce or distribute religious literature, and known Baha’i religious sites and cemeteries are regularly desecrated or destroyed. Baha’i families are excluded from official recognition of family law matters, including marriages, divorces and custody arrangements.
The authorities also severely restrict Baha’is’ access to higher education. The Ministry of Science, Research and Technology requires universities to exclude Baha’i students from enrolling and to expel them if their religious affiliation becomes known. Baha’is wishing to attend university must therefore supress their religious identity. According to the Special Rapporteur on the situation of human rights in Iran, 17 Baha’i students were expelled from higher education institutions between January and June 2019. Human Rights Watch claims 54 Baha’i students were prevented from registering at universities because of their faith after taking the national entrance exam for the 2018 school year.
The authorities harass, prosecute and imprison Baha’is, including on national security grounds (typically, propaganda against the state). Human rights observers report that nearly 100 Baha’is were arrested in 2018, including in Alborz, Mashhad, Isfahan and Kurdistan provinces. In January 2019, nine Baha’is were reportedly sentenced to a total of 48 years’ prison for ‘membership of the illegal Baha’i community and propaganda against the regime by spreading the Baha’i faith in the society’. In 2008, seven community leaders were handed 10-year prison sentences for ‘disturbing national security’, ‘spreading propaganda against the regime’ and ‘engaging in espionage’. All were released after completing their sentences. More than 20 Baha’is were reportedly arrested in August and September 2018 on unspecified charges. The authorities are known to arrest Baha’is who close their shops on Baha’i religious holidays or keep them open on Muslim religious holidays. The Special Rapporteur on the situation of human rights in Iran claims the Baha’i ‘have suffered from the most egregious forms of repression, persecution and victimization’.
DFAT assesses that Baha’is face a high risk of official and societal discrimination based on their non-recognised status, the hostile rhetoric used against them in official statements and the limits imposed on their employment, education and family law status. Baha’is who are open about their faith and who advocate for the community’s rights face a high risk of arrest and imprisonment.
[17] DFAT Country Information Report – Iran, 14 April 2020 at 3.59 – 3.63.

The 2020 DFAT Country Information Report also notes that religiously-based charges are possible in Iran.[18] However, the report notes that death sentences in apostacy and blasphemy cases are rare. Many social norms and cultural activities are associated with Islam and non-participation in religious events can raise suspicion from neighbours and the community.[19]
[18] DFAT Country Information Report – Iran, 14 April 2020 at 3.73–3.77.
[19] ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 22; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 11.
Country information supports the applicant’s claims that Baha’i property is subject to seizure and that authorities continued to prevent Baha’is being buried in accordance with their religious traditions.[20]
[20] US Department of State, 2019 Report of Religious Freedom in Iran, Iran - United States Department of State.
The applicant also cited information from the 2020 DFAT Country Information Report, which discusses the use of the death penalty in Iran, reports of torture and mistreatment of detainees and the use of other forms of cruel, inhuman or degrading treatment or punishment.[21] While this information does not relate specifically to Baha’is the Tribunal accepts it reflects mistreatment which may occur in Iranian prisons.
[21] DFAT Country Information Report – Iran, 14 April 2020 at 4.05-4.20.
Recent reports indicate that the persecution detailed in the 2020 DFAT Country Information Report continues in Iran, notwithstanding the impact of the coronavirus pandemic.[22] This includes the recent conviction of Baha’i women in the applicant’s hometown of Mashhad on apostacy related charges.[23]
[22] ‘Five Baha'is Summoned to Covid-Hit Prison - Iran Press Watch; ‘In the middle of a pandemic, Iran dials up persecution of its Baha’i citizens’, The Wire, 12 October 2020.
[23] Five Baha'is Summoned to Covid-Hit Prison - Iran Press Watch.
The Tribunal is satisfied on the country information that members of the Baha’i faith in Iran face a high risk of official and societal discrimination. This includes restrictions on employment, education, governmental pensions and access to services available to other Iranian citizens.[24] Concerns regarding the position of Baha’is in Iran is reflected in the parliamentary debate record submitted by the applicant. [25] While the Tribunal does not place significant weight on that debate as country information it accepts it reflects a level of recognition of the situation of Baha’s in Iran.
[24] US Department of State, 2019 Report of Religious Freedom in Iran, Iran - United States Department of State.
[25] Hansard records from a Commonwealth House of Representatives, Private Members Business debate on the Baha’i faith on 16 September 2019.
The Tribunal is satisfied that members of the Baha’i face a real risk of arrest and imprisonment for their religious beliefs in Iran. There is also a risk of mistreatment while imprisoned. While the country information suggests that risk is heightened for those who are open about their faith and advocate for their community’s rights, the country information documents attacks against Baha’i from a range of backgrounds, ages and genders. The Tribunal does not regard, on the country information, that the real risk of this kind of enforcement activity is limited to those with a high profile or particular religious standing among the Baha’i community in Iran.
Risk of harm to the applicant as a member of the Baha’i faith
After hearing her oral testimony, and considering the applicant’s evidence, the Tribunal is satisfied that the applicant has a subjective fear of being harmed for reasons of her Baha’i faith. Given country sources which indicate persistent discrimination and persecution of Baha’is, her medical issues and her lack of family support in Iran, it is reasonable that she would have such fear, particularly given her experiences in Iran and those of her family.
The country information set out above indicates that the government in Iran continues to persecute members of the Baha’i faith. The Tribunal considers if the applicant were to return to Iran and practice her Baha’i faith discreetly she might be able to do so without attracting the adverse attention of the Iranian authorities. However, the Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm: s. 5J(3) and Appellant S395/2002 v MIMA (2003) 216 CLR 473. In any event, the Tribunal regards that the persecution of the Baha’i community in Iran is such that even if the applicant chose to practice her faith discreetly she would still face a real chance of serious harm.
The Tribunal is satisfied that the applicant, with her particular vulnerabilities, has a real chance of serious harm for reasons of her religion, being her Bahai faith. In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities.
This applicant is particularly vulnerable for a number of reasons. The Tribunal accepts she has serious health issues associated with advancing age and the effects of a fall in Iran. Those issues mean she needs ongoing medical care and is unable to live safely on her own. The Tribunal accepts she has no family in Iran who would be able to provide her with the support necessary for her to live there. While she may have access to some support from the Baha’i community, there is no evidence before the Tribunal that such support would be sufficient to provide the applicant with the fulltime care and support which the aged care assessment indicates she requires. Further, she is a member of a religious group that routinely suffers discriminatory treatment accessing government services, including, in the applicant’s experience, medical services.
The Tribunal is of the view that if she returned to Iran in the reasonably foreseeable future, without any family or network, she would be particularly vulnerable to discrimination and stigma based on her Baha’i faith. It is likely that she would return to Mashhad where she is an established member of the Baha’i community. This would provide her with some protection and access to community support.. However, as noted above, country information suggests there have been recent incidents of arrests of Baha’i members in Mashhad, including 5 women in January this year suggesting persecution including arrest and imprisonment remains a real risk for the Bahai community in that city.
She may also have some income support in the form of a pension, however, based on the country information,there is a real chance this may be subject to cancellation due to her own or her deceased husband’s Bahai faith. She would be unable to work due to advanced age, physical condition and her prior exclusion from government employment since the 1980s due to her Baha’i faith. The Tribunal is satisfied that there is a real chance that the discrimination the applicant would suffer as a Baha’i would lead to an inability for her to subsist, given her personal vulnerabilities and lack of support. Furthermore, as the applicant does not have family in Iran, if her need for full time support resulted in her being institutionalised, she would be particularly vulnerable to the discriminatory treatment detailed in the DFAT report. This would place her at real chance of serious harm in the form of physical and mental injury.
If the applicant were to return to Iran, she would return with fear, given her history, have no family and limited access to government services. She would have a limited and vulnerable source of income and no immediately available housing.
The Tribunal is satisfied, considering her vulnerabilities, and the country reporting on the treatment of Baha’is in Iran, that there is a real chance, which may be less than 50 per cent, but is more than a speculative,[26] remote or non-substantial chance,[27] that she would be seriously harmed if she returns to Iran in the reasonably foreseeable future for reasons of religion, as a member of the Baha’i faith.
[26] Chan v MIEA (1989) 169 CLR 379.
[27] MIEA v Guo (1997) 191 CLR 559.
Conclusion
Based on independent sources, the Tribunal is satisfied that the applicant’s religion would be the essential and significant reason for her persecution, given the country information on discrimination and persecution of Baha’is in Iran.
The Tribunal is also satisfied that the harm she would suffer would amount to serious harm. Indicative examples are set out in s.5J(5) of the Act, and include significant physical ill-treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist. The Tribunal is satisfied that the harm she will suffer may include treatment amounting to serious physical and psychological harm and other ill-treatment, and the inability to subsist because of discrimination in employment and services for reasons of her religion.
The Tribunal is also satisfied that the persecution would involve systematic and discriminatory conduct. The mere impact of circumstances which an applicant may face in the future, even if arising from past persecution, would not constitute persecution for the purposes of ss.5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[28] The Tribunal is satisfied that there is a real chance of serious harm in the form of ill-treatment or discrimination in jobs and services by the government or members of the community.
[28] See for example WAKZ v MIMIA [2005] FCA 1065 at [49].
In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan v MIEA (1989) 169 CLR 379 was not intended to mean that there can be no persecution unless there is a systematic course of conduct; rather it was used as a synonym for non-random.[29] Discriminatory refers to the motivation of the persecutor, as enunciated in the well-known passage in Ram v MIEA, cited with approval by the High Court and Federal Court on a number of occasions, where Burchett J said:
Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.[30]
[29] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
[30]Ram v MIEA (1995) 57 FCR 565 at 568.
The Tribunal is satisfied that the harm the applicant would suffer would involve systematic and discriminatory conduct as it would be directed at the applicant because of her religion.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
Since the Iranian government is responsible, in part, for the persecution that the applicant fears, the Tribunal is not satisfied that the effective protection measures as per s.5LA are available to the applicant in Iran provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Iran for the purposes of s.5LA(2).
For the same reasons, the Tribunal is not satisfied that there is any part of Iran in which she would be safe from the persecution that she fears as a member of the Baha’i faith. The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Iran and therefore satisfies s.5J(1)(c).
The Tribunal notes that s.5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case the Tribunal is satisfied that the modification would require the first applicant to ‘alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practise of his or her faith’: therefore s.5J(3) does not apply.
Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether she comes within the definition of a refugee contained in s.5H, it accepts that she is outside the country of her nationality and unable to return to it owing to her well-founded fear of persecution. Therefore, she meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Simone Burford
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 659

5 February 2021

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